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Richard McLellan

Richard McLellan

Is Michigan Over-Criminalizing State Government?

September 1, 2017

I doubt if there are any readers of Dome Magazine who have not—at some time or another–cursed the “damn bureaucrats” in Michigan state government for something we didn’t like.  Beating up on state government officials for perceived failures is the right that we all have and it is a sign of healthy and engaged citizenry in a free society. But each of us can also identify times when hard working state government employees have delivered a useful, valuable or lifesaving service.

Now Attorney General Bill Schuette (and his team of outside lawyers) is leading a campaign to substantially blame the Department of Environmental Quality (DEQ) and the Department of Health and Human Services (DHHS) for what has become the “Flint Water Crisis.” The Flint water mess is a major blunder by federal, state and local government officials in meeting the needs of the City of Flint and its citizens.  I am sure several books will be written to try and explain what happened and why.

I am concerned that Michigan will not fix what needs to be fixed in Lansing and Flint because of the AG’s focus on criminal charges against state and local officials. 

I share the perception of most people who work “inside the beltway” of state government that Michigan is a “clean state” with very little corruption. For that reason, I am distressed by recent efforts of the Attorney General Schuette to identify some sort of widespread criminal conspiracy in state government. Somehow the AG has determined that the real policy blunders in the Flint Water Crisis amount to the type of lawlessness that requires the AG to charge 15 public officials with 51 different criminal offenses.

From my perspective, this is a mistake and is based on a serious misinterpretation of the role of state government agencies and their officers.

Readers of DOME are interested in government. Many readers have had years of experience in government and have their own view the role of various mechanisms for protecting citizens and reducing misconduct. Criminal sanctions have a role, but a limited one, in administration of government.

This is a good time to take a look at what powers and duties state agency heads actually have:

  • State officials administer and enforce only the laws given to them by the Legislature and the Governor. These laws frequently are ambiguous and require interpretation and understanding. Every year the Michigan Law Revision Commission (of which I am chair) compiles a number of appellate cases in which Michigan courts call for legislative action to clarify confusing statutes.
  • State agencies can only spend the funds that are appropriated and need to make choices among competing demands for staff and funds. For example, the Public Health Code makes it clear that the DHHS health services “which are funded by appropriations to the department” are “basic health services.” But, the department must revise the basic health services “to reflect funds actually appropriated.”   
  • Other than top deputies, state department heads do not directly hire their staffs. Most state workers are classified civil servants, which creates management challenges that differ substantially from the private sector.  Civil service rules make it nearly impossible to fire a state employee.
  • Michigan’s state government decision-making process is complex, frequently misunderstood, with a complex of statutes, state administrative rules, federal rules, judicial decisions, and mandatory procedural steps that often seem to be designed to prevent efficient decision-making.
  • Lawyers like me, both in and out of government, can make a public official’s job more challenging. Most determinations by an official are subject to second guessing by a court determining “whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.” 

In spite of these impediments, state officials daily have to make life-altering decisions affecting Michigan citizens; for example:

  • Government agencies make judgment calls on whether to take an at risk child from his or her home. This can have devastating and even fatal effects if the wrong decision is made.
  • Licensing board actions to revoke licenses for an incompetent doctor or drug-addicted nurse can save lives. On the other hand a wrong decision can destroy a career.
  • Parents and education officials rely on state fire marshal inspections of schools to avoid disasters and loss of life.
  • Background checks conducted on public and private school employees are designed to protect students from predators.

As citizens we want the best possible decision-making by public officials. But, we should recognize that state employees are just like us: Some good, some bad. We elect and appoint top officials to manage the complexities of government and make these critical decisions.  And when state officials fail, we have government tools to make changes:

  • Department directors are “appointed by the governor by and with the advice and consent of the senate and he shall serve at the pleasure of the governor.”
  • The Michigan Legislature has the constitutional authority to investigate any department and summon officials to answer to the Legislature.
  • Michigan’s Auditor General conducts financial and program audits of all state agencies.
  • Civil service employees are subject to discipline and discharge pursuant to Civil Service Commission Rules.
  • The public and media are protected by the Freedom of Information Act and the Open Meetings Act.

My concern, however, is the decision by the state AG to rely almost entirely on criminal prosecutions to address what are essentially bureaucratic failures.  I believe the AG’s strategy amounts to an over-criminalization of governmental administrative decisions. This approach ignores that well established norms for government action, uses vague notions of “common law” to punish state and local employees, and creates fear, risk aversion and morale issues in the day-to-day conduct of government.

Criminal charges for the mistakes of bureaucrats should be the last resort. For example, the Public Health Code provides that the “director or an employee or representative of the department is not personally liable for damages sustained in the performance of departmental functions, except for wanton and wilful misconduct.”

Richard McLellan is a lawyer who has practiced administrative and constitutional law for 49 years in Lansing. He has served in a wide variety of public appointments by multiple governors.

August 31, 2017 · Filed under Richard McLellan


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